Having notified the employer by letter of her intent to visit the workplace and distribute documents related to the employer’s proposed shift changes, a union president was denied access to the workplace.
The union grieved, arguing that having fulfilled the procedural requirements with respect to notice as spelled out in the collective agreement, access could not be denied at the employer’s discretion. The union sought a declaration that the denial of access was a breach of the collective agreement.
The employer advanced the position that while the collective agreement did contemplate union access to the workplace, it did not extend the right to interact with employees on the shop floor, during working hours. Moreover, noting that the visit was proposed for the busiest time of the busiest day to discuss a contentious issue, the employer said that the right of union access to the workplace was subject to the condition that the visit not impair worker productivity.
Extreme positions
Both parties in the case had taken somewhat “extreme positions,” the arbitrator said, with both making the case for the guidance of a different seminal award and citing collective agreement provisions that require arbitrators to follow previous awards where the fact situations are identical or nearly so.
The thrust of the award favoured by the union made the case that union access must be granted as requested unless the planned union action is “patently unlawful, illegal or immoral …”
The employer argued that the arbitrator was bound to follow an award that stated that the union’s right to access did not give it the right to interrupt production. As that award stated, “This means keeping a reasonable distance from union members who are working and not engaging them in discussions while they are at work.”
Both were right — in part — the arbitrator said. The employer did breach the collective agreement when it denied the union president access to the workplace. It was not open to the employer to deny access based on its assumption that the mere presence of a union official would necessarily cross the interaction threshold and disrupt production. Even if there was some unanticipated disruption, the award cited by the employer called for a warning to be issued before access could be restricted.
Reasonable to anticipate disruptions
However, the arbitrator said, the employer was within its rights to deny access to the extent that the purpose the of the union president’s visit could reasonably been seen to extend beyond the bare access provisions in the collective agreement: “In these circumstances, it could reasonably have been anticipated in advance that production would have been disrupted as a direct consequence of distributing copies of these shift changes at the workplace during working hours by the Union President, regardless of whether or not the affected employees had prior knowledge. It would be naïve in the extreme to think that these employees would have simply received the printed schedules from the Union President without engaging the President or other employees in discussion.”
While the arbitrator stressed that the mere presence of a union official on the plant floor cannot be assumed to have a negative effect on production, he found that, “where it can reasonably be anticipated that there would be a negative impact upon production as a necessary consequence of the stated purpose of the visit, the purpose becomes an invalid one within the meaning [of the article of the collective agreement] such that a denial of access for that purpose does not give rise to a breach of the article.”
